COVER: Real estate broker and San Marcos planning commissioner Carter Morris, right, and his father Randall Morris at an event in January celebrating the company’s new affiliation with Century 21. The San Marcos Ethics Review Commission will hold a hearing tonight on allegations that Morris improperly lobbied the city council to garner support for land use entitlement changes on properties he was financially connected to. Morris aggressively denies the allegation and his attorneys put out a four-page rebuttal on Tuesday. MERCURY FILE PHOTO

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Update

9:23 p.m. WEDNESDAY, SEPT 11: The San Marcos Ethics Review Commission voted 5-2 Wednesday to issue a “letter of notification” to planning and zoning commission vice chair Carter Morris. The least severe of sanctions available to ethics commissioners, a letter of notification is reserved for ethics codes violations that are “clearly unintentional, or when the official or employee’s action was made in reliance on a written opinion of the city attorney,” according to the code.

Led by ethics commissioner Toby Hooper, a majority of the commission determined that Morris committed “minor” infractions when he met with San Marcos City Council members about a rezoning case in which he had a financial stake. Morris recused himself from P&Z votes on the proposed Sessom Drive retail/residential landmark but complainant Forrest Fulkerson successfully argued that Morris should have also refrained from discussing the project with council members.

”I’m disappointed that some commission members applied a brand new and overreaching interpretation of a provision of the city code. This new interpretation, if it stands, will prevent San Marcos citizens who serve on boards and commissions from speaking with elected officials and exercising their rights as private citizens and doing their jobs. I continue to maintain that I followed the city code and acted ethically at all times,” Morris said in a written statement issued this evening.

This is a developing story.

—by BRAD ROLLINS

Returning fire a day before his Ethics Review Commission closeup, prominent Central Texas real estate broker Carter Morris on Tuesday released a spirited rebuttal to an allegation he improperly lobbied San Marcos City Council members in support of a controversial student housing development on Sessom Drive.

“I do not know why [the complainant] saw fit to file these ethics complaints a year and a half after the fact, but I vigorously contest the allegations. I fully complied with the Ethics Code and acted entirely properly,” Morris states in a 2,000-word retort provided to the San Marcos Mercury by his attorney, Peter D. Kennedy. ”I am prepared to defend myself and my name.”

After determining last month that San Marcos resident Forrest Fulkerson’s complaints met technical requirements for further consideration, the ethics commission has scheduled a special public hearing on the allegations for 5:30 p.m. today. The showdown has limitless potential for drama; Morris suggests he will treat the hearing as a full-fledged judicial proceeding and has informed the commission that his attorneys may call and question witnesses.

» Join MercuryPro: Read the full story and Morris’ complete official response to ethics complaints. Plus: Review our extensive archive of Sessom Drive development coverage.

If the Ethics Commission finds him guilty, Morris will just turn around and sue the city for character defamation, slander, and libel. There are general protections to prevent people from suing judges and juries that convict them of crimes, but they don’t apply here.

I couldn’t begin to guess the outcome of the resulting legal battle, but it would cost the city a substantial sum in legal fees even if they do win.

And, because everybody knows this, the Ethics Commission is all but certain to rule in Morris’s favor, regardless of the evidence.

The problem here is not in the end whether Mr. Morris violated the ethics law, but it has to do with city commissions and city council members who make their living from items that regularly come before the city for review. Mr. Morris was right to recuse himself from the vote, but in earning his living and doing what he needs to do to serve his business clients, he puts himself and the city in an awkward position. Same is true for Ryan Thomason of the City Council and his business partner who is a Planning and Zoning Commissioner. It doesn’t look right even when those involved conduct themselves very carefully within the rules.

Ryan Thomason of the City Council and his business partner who is a Planning and Zoning Commissioner should not serve on either. Both vote to try and fill their pockets. Watch the last council meeting where Mr. Thomason tried to open up 2 acer lots for multi family and unrestricted bedrooms. Mr. Morris is part of this group as well. San Marcos needs to remove the good old boy out of politics, it only hurts the city.

Given that the current rules prevent non-homeowners (who constitute the majority of citizens) from serving on the Planning and Zoning Commission, surely it would be possible to restrict those with Real Estate licenses from serving on P&Z. It would certainly be in the city and citizen’s best interest when “[i]t doesn’t look right even when those involved conduct themselves very carefully within the rules.”

One of the arguments made by Fulkerson was that, while almost every city commission is purely advisory in nature, P&Z Commissioners are “public officials” in the same way members of the City Council are, because the P&Z Commission has non-advisory functions under state law. As such, they must follow the higher standard of the Texas Open Meetings Act, not just the city’s code of conduct.

The Ethics commission just interpreted the questionable actions like the Texas codes dictated. Not a new interpretation. Read the following:

Texas Statutes Local Government Code
Sec. 171.004. AFFIDAVIT AND ABSTENTION FROM VOTING REQUIRED. (a) If a local public official has a substantial interest in a business entity or in real property, the official shall file, before a vote or decision on any matter involving the business entity or the real property, an affidavit stating the nature and extent of the interest and shall abstain from further participation in the matter if:
(1) in the case of a substantial interest in a business entity the action on the matter will have a special economic effect on the business entity that is distinguishable from the effect on the public

From the competition: “Multiple current and former Planning and Zoning Commissioners have confirmed that in 2011 Commissioner Carter Morris held individual meetings with each commissioner to discuss the North Campus Project which is the first iteration of what became the controversial Sessom Creek Multifamily Project proposed by developer Darren Casey.”

Multiple current and former
Planning and Zoning Commissioners
have confirmed that in
2011 Commissioner Carter Morris
held individual meetings with
each commissioner to discuss the
North Campus Project which is
the first iteration of what became
the controversial Sessom Creek
Multifamily Project proposed by
developer Darren Casey.
The Daily Record obtained an
email, stemming from an open
records request by local resident
Forrest Fulkerson, that shows
Carter Morris attempting to
schedule eight back-to-back
meetings with each Planning and
Zoning Commissioner, individually,
to discuss the North Campus
Project at the Randall Morris and
Associates office.

“Just wanted to remind
you of the meetings
scheduled for tomorrow
with myself and the developers
of the North
Campus Project,” the email
says.
The three commissioners
who were successfully
contacted by the
Daily Record by the time
of press said that each
attended a meeting.
According to the email,
the meetings were scheduled
for Nov. 17, 2011,
five days before Morris
recused himself from a
Planning and Zoning
Commission meeting
when the project was to
be discussed. The
planned meetings were
scheduled each hour
from 9 a.m. until 5 p.m.,
excluding noon, with a
different commissioner.
Initially, Morris recused
himself to “avoid
the appearance of impropriety”
and later recused
himself because of
“funds received by me
from the business entity
exceed 10 percent of my
gross income for the future
year.”
In a prepared statement,
Morris said, “The
Ethics Review Commission
provided their new
interpretation of the
rules last week in a split
vote. I’m abiding by their
new rules, even though
we have a difference of
opinion. Based on last
week’s hearing for events
that occurred 18 months
ago, I consider this matter
done and there’s no
story here.”
Morris was issued a
letter of notification last
week from the Ethics Review
Commission for two
instances involving the
North Campus Project,
but those two incidents
did not involve any meetings
with the Planning
and Zoning Commissioners.
The Texas Attorney
General has issued opinions
on consecutive
meetings with public officials
often called a “daisy
chain” or “walking quorum.”
Opinion number GA-
0326 says, “Members of
a governmental body
who knowingly conspire
to gather in numbers
that do not physically
constitute a quorum at
any one time but who
through successive gatherings
secretly discuss a
public matter with a quorum
of that body violate
section 551.143 of the
Open Meetings Act.”
The Texas Open Meetings
Act also states that
“a meeting of less than a
quorum is not subject to
the Act ‘when there is no
intent to avoid the Act’s
requirements.’”
City of San Marcos Attorney
Michael Cosentino
did not discuss the particular
instance but said
that city staff advises
against the practice as
well.
“We do advise against
it. Our advice has consistently
been: ‘Wait until
the meeting to have the
meeting.’ Really the public’s
business should be
transacted in public
where the public can see
it.”
Cosentino also stated,
“It’s well known in Texas
the idea of a walking
quorum. It should be
well known by every
commission member…
We very consistently (advise
against it) on a regular
basis. Most of the
time the staff is asked if
they can set up a meeting
of that type, and the
answer is consistently
‘No.’”
If any further action
were to be taken, it
would be up to the Hays
County District Attorney
to determine if an open
meetings violation occurred

The Texas statutes point toward to having a conflict of interest, which Carter does in the business entity Randall Morris and Associates and that conflict of interest exists to this day, with regard to the properties on Sessoms Creek. Carter’s conflict didn’t end when the P&Z voted in which he also abstained from voting.

To further my explanation, I will reference the Conflict of Interest Made Easy 2012 by the Texas Attorney General’s office:

Question
15. May a local official deliberate about an issue with which the official has a conflict of interest if the official abstains from voting on the issue?

No, a local official may not discuss an issue with which he or she has a conflict of interest even if he or she abstains from voting on the item.41 The statute prohibits “further participation” in a matter if a conflict exists.42 If a conflict of interest exists, the official must file the required affidavit and abstain from both discussing and voting on the item.43 The attorney general has opined that a member of a governmental body does not “participate in a matter” for purposes of the conflict of interest laws by merely attending an executive session on the matter and remaining silent during the deliberations.44 However, it may be wise, the opinion noted, for the interested public officer to refrain from attending open or closed meetings that address the matter in which he or she is interested.

Carter Morris claimed to know the rules by his earlier admission to the Mercury by serving on the Ethics Commission, but obviously he didn’t know the rules.
Coupled with the new email from Carter to each of the P&Z Commissioners before the vote at P&Z that I got access to via open record request, I would guess that he doesn’t care about the rules. Is this the kind of Vice Chair for our Planning & Zoning Commission that we want to represent the City of San Marcos interests? The letter referenced prearranged sequential meetings with himself, Ed Theriot, the developer, and each the P&Z commissioners at the Randall Morris Realty office on Cheatum Street.